What a WTO Complaint Against Section 232 Tariffs/Quotas Might Look Like

In anticipation of possible U.S. tariffs/quotas on steel/aluminum imports under Section 232, citing national security, I'm going to run through the possible WTO claims against such measures. Let's hope everyone can talk the Trump administration out of this, but if not, a WTO complaint is an important element of fighting back, even if retaliation is taken at the same time.

Let's start with the obvious violations. If it's tariffs and quotas, there are clear GATT Article II and/or Article XI violations. Not much elaboration needed.

The interesting part is the GATT Article XXI defense. When the U.S. invokes Article XXI, what will the panel do with the issue? Roger Alford has laid out a couple possibilities:

The degree to which these exceptions are self-judging is an open question. According to one interpretation, a Member State can decide for itself whether a measure is essential to its security interests and relates to one of the enumerated conditions. Another interpretation would recognize a Member State's prerogative to determine for itself whether a security exception is applicable, but would impose a good faith standard that is subject to judicial review. Under a third interpretation, a Member State can decide for itself whether "it considers" a measure to be "necessary for the protection of its essential security interests," but the enumerated conditions are subject to judicial review.

I have no idea what a panel would do here (aside from the obvious, which is to hope the parties resolve the dispute before it has to rule).

Beyond the GATT, there is also the AD Agreement. The Appellate Body said the following in the 1916 Act case:

124. Article 18.1 of the Anti-Dumping Agreement contains a prohibition on the taking of any "specific action against dumping" of exports when such specific action is not "in accordance with the provisions of GATT 1994, as interpreted by this Agreement". Since the only provisions of the GATT 1994 "interpreted" by the Anti-Dumping Agreement are those provisions of Article VI concerning dumping, Article 18.1 should be read as requiring that any "specific action against dumping" of exports from another Member be in accordance with the relevant provisions of Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement.

Trump and others in the administration have made a lot of references to "unfair" trade and dumped goods in the context of steel and aluminum imports. Is there an argument that the measures imposed pursuant to the Section 232 investigation are, in part, a "specific action against dumping," and one that is not consistent with GATT Article VI? If so, then maybe they violate AD Agreement Article 18.1. And if they violate Article 18.1, it's not clear GATT Article XXI can be invoked (Article XXI begins with "Nothing in this Agreement shall be construed," with "this Agreement" being the GATT). Personally, I like the argument that GATT Article XX and Article XXI should apply to all the goods agreements. But I get the sense that most people disagree, so maybe it's worth making the Article 18.1 argument in the hopes of getting a finding of violation that can't be defended with Article XXI. (Of course, the U.S. can also argue that invoking Article XXI means there is no inconsistency with Article VI).

And then finally, there is my favorite kind of claim: A non-violation nullification or impairment claim. Whether or not the Section 232 measures violate WTO obligations, they certainly nullify or impair benefits. The problem is, even if you win this kind of claim, it's not clear how strong a remedy there is (see DSU Article 26).

There's one additional wildcard with a non-violation claim. Would the U.S. argue that invoking Article XXI means that even a non-violation claim cannot be considered? When I read the GATT Nicaragua Embargo case, it doesn't seem like the U.S. made that argument ("The United States recognized that a measure not conflicting with obligations under the General Agreement could be found to cause nullification and impairment and that an invocation of Article XXI did not prevent recourse to the procedure of Article XXIII"). But that was then, and this is now, so who knows.

This was all to get the discussion started. Any other thoughts from readers?

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What a WTO Complaint Against Section 232 Tariffs/Quotas Might Look Like

In anticipation of possible U.S. tariffs/quotas on steel/aluminum imports under Section 232, citing national security, I'm going to run through the possible WTO claims against such measures. Let's hope everyone can talk the Trump administration out of this, but if not, a WTO complaint is an important element of fighting back, even if retaliation is taken at the same time.

Let's start with the obvious violations. If it's tariffs and quotas, there are clear GATT Article II and/or Article XI violations. Not much elaboration needed.

The interesting part is the GATT Article XXI defense. When the U.S. invokes Article XXI, what will the panel do with the issue? Roger Alford has laid out a couple possibilities:

The degree to which these exceptions are self-judging is an open question. According to one interpretation, a Member State can decide for itself whether a measure is essential to its security interests and relates to one of the enumerated conditions. Another interpretation would recognize a Member State's prerogative to determine for itself whether a security exception is applicable, but would impose a good faith standard that is subject to judicial review. Under a third interpretation, a Member State can decide for itself whether "it considers" a measure to be "necessary for the protection of its essential security interests," but the enumerated conditions are subject to judicial review.

I have no idea what a panel would do here (aside from the obvious, which is to hope the parties resolve the dispute before it has to rule).

Beyond the GATT, there is also the AD Agreement. The Appellate Body said the following in the 1916 Act case:

124. Article 18.1 of the Anti-Dumping Agreement contains a prohibition on the taking of any "specific action against dumping" of exports when such specific action is not "in accordance with the provisions of GATT 1994, as interpreted by this Agreement". Since the only provisions of the GATT 1994 "interpreted" by the Anti-Dumping Agreement are those provisions of Article VI concerning dumping, Article 18.1 should be read as requiring that any "specific action against dumping" of exports from another Member be in accordance with the relevant provisions of Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement.

Trump and others in the administration have made a lot of references to "unfair" trade and dumped goods in the context of steel and aluminum imports. Is there an argument that the measures imposed pursuant to the Section 232 investigation are, in part, a "specific action against dumping," and one that is not consistent with GATT Article VI? If so, then maybe they violate AD Agreement Article 18.1. And if they violate Article 18.1, it's not clear GATT Article XXI can be invoked (Article XXI begins with "Nothing in this Agreement shall be construed," with "this Agreement" being the GATT). Personally, I like the argument that GATT Article XX and Article XXI should apply to all the goods agreements. But I get the sense that most people disagree, so maybe it's worth making the Article 18.1 argument in the hopes of getting a finding of violation that can't be defended with Article XXI. (Of course, the U.S. can also argue that invoking Article XXI means there is no inconsistency with Article VI).

And then finally, there is my favorite kind of claim: A non-violation nullification or impairment claim. Whether or not the Section 232 measures violate WTO obligations, they certainly nullify or impair benefits. The problem is, even if you win this kind of claim, it's not clear how strong a remedy there is (see DSU Article 26).

There's one additional wildcard with a non-violation claim. Would the U.S. argue that invoking Article XXI means that even a non-violation claim cannot be considered? When I read the GATT Nicaragua Embargo case, it doesn't seem like the U.S. made that argument ("The United States recognized that a measure not conflicting with obligations under the General Agreement could be found to cause nullification and impairment and that an invocation of Article XXI did not prevent recourse to the procedure of Article XXIII"). But that was then, and this is now, so who knows.

This was all to get the discussion started. Any other thoughts from readers?